FEDERAL COURT OF AUSTRALIA

Seymour Whyte Ltd, in the matter of Seymour Whyte Ltd (No 2) [2017] FCA 1182

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act), the scheme of arrangement between Seymour Whyte Limited (SWL) and holders of ordinary shares in SWL in the form contained in Attachment B of the Explanatory Memorandum which is Exhibit 1 in these proceedings, be approved.

2.    Pursuant to s 411(12) of the Act, SWL be exempted from compliance with s 411(11) of the Act in relation to Order 1.

3.    These orders be entered forthwith

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

1    This is the second court hearing in relation to a proposed scheme of arrangement between Seymour Whyte Limited (SWL) and its ordinary shareholders pursuant to which VINCI Construction Australasia Pty Ltd (VCA) will acquire all of the issued SWL shares.

2    On 21 August 2017, this Court made orders convening a meeting of SWL’s shareholders for the purpose of considering, and if thought fit, approving a scheme of arrangement between SWL and its ordinary shareholders: see Seymour Whyte Ltd, in the matter of Seymour Whyte Ltd [2017] FCA 1009. The factual background is set out at paragraphs [1]-[2] and [6]-[18] of those reasons and terms used in those reasons bear the same meaning in these reasons, unless otherwise indicated.

3    SWL now seeks orders under s 411(4) of the Corporations Act 2001 (Cth) approving the Scheme. SWL has filed written submissions in support of its application. I generally accept the summary of principles to be applied by the Court set out at [8]-[12] of the submissions which rely on well-established authorities.

4    In support of its application, the following affidavits read at the hearing today:

(1)    Katrina Anne Sleiman (a solicitor employed by Corrs Chambers Westgarth) affirmed on 22 September 2017; Ian Robert Fulton (Business Manager at Senses Direct Mail & Fulfillment Pty Ltd) sworn on 22 September 2017; Julia Margaret Tealby (SWL’s Company Secretary) affirmed on 25 September 2017; Marie-Christine Guezennec (Corporate Services Associate at Computershare Investor Services Pty Ltd) sworn on 26 September 2017; and Rebecca Teichmann (Client Delivery Consultant at Computershare Communication Services Pty Ltd) affirmed on 27 September 2017. These affidavits relate to the finalisation, printing and despatch of the Scheme Booklet and proxy forms;

(2)    Kenneth Macmillan Drysdale (Chairman of SWL) sworn on 28 September 2017 and John Harris (Relationship Manager at Computershare Investor Services) sworn on 28 September 2017. These affidavits relate to the conduct of the Scheme Meeting and votes cast at it and resolutions passed by SWL’s board of directors; and

(3)    Gilles Godard (President of VINCI Construction International Network (VCIN)) affirmed on 28 September 2017 in relation to verification of bidder information in the Scheme Booklet and the availability of funding for the Scheme Consideration and the Second Special Dividend referred to below.

(4)    Stanley Robert Lewis (a partner at Corrs Chambers Westgarth) affirmed on 3 October 2017 concerning the satisfaction or waiver of conditions precedent to the Scheme Implementation Agreement and the absence of notice of opposition to the Scheme.

5    On the basis of these materials, I am satisfied that:

(1)    The Scheme Booklet was registered by ASIC on 22 August 2017.

(2)    On 21 August 2017, the number of shareholders on SWL’s register was 1,878, comprising: (a) 885 shareholders who had provided an election to receive notices electronically and had email addresses recorded; and (b) 993 shareholders who had not done so, seven of whom had addresses outside Australia.

(3)    On 28 August 2017, a subsidiary of Computershare Limited sent an email notification to the relevant 885 shareholders. The email contained a “web-link” that enabled the shareholders to view the Scheme Booklet, including the Notice of Meeting as well as a facility to lodge a proxy online. Of these emails, there were four which were identified on 29 August 2017 as having “bounced back”; they related to four shareholders with addresses in Australia. Hard copy documents were despatched to them on 31 August 2017.

(4)    On 28 August 2017, personalised fly-sheets, direct credit forms, proxy forms, a reply paid envelope for Australian shareholders and an envelope addressed to Computershare Investor Services in the case of foreign shareholders were sent to Senses Direct for mailing to those shareholders for whom there was no email address. Those materials, together with the Scheme Booklets were packaged by Senses Direct and lodged with Australia Post on 28 August 2017.

(5)    On 26 September 2017, SWL’s directors determined to pay the First Special Dividend (a fully franked dividend of $0.075) and a Second Special Dividend (a fully franked dividend of $0.37) if the Scheme is approved (Scheme Dividends). Resolutions approving the payment of those dividends and the provision of financial assistance in connection with the acquisition of shares under the Scheme were passed unanimously. The resolution to pay the Scheme Dividends is subject to, among other things, SWL and VINCI Finance International (VFI) entering into the VFI Loan Agreement. The VFI Loan Agreement was entered into on 27 September 2017 and an announcement was made to the ASX in relation to the Scheme Dividends. If the Scheme is implemented, the Scheme Dividends will be paid on 13 October 2017 and the Scheme Consideration of $0.84 per share will be paid on 23 October 2017.

(6)    A meeting of SWL’s ordinary shareholders was held on 28 September 2017 in accordance with orders which I made on 21 August 2017 and those orders otherwise appear to have been complied with in all material respects.

(7)    A total of 494 (or 26.3%) of shareholders voted at the Scheme Meeting, 489 for the Scheme and five against, with two shareholders abstaining. They cast 68,664,577 votes, representing 78.05% of the 87,976,230 shares on issue. 68,652,490 votes or 99.98% of votes cast were in favour of approving the Scheme. 12,087 votes cast were against approving the Scheme. The Scheme was therefore approved by the requisite majority, being a majority in the number of shareholders attending and voting at the scheme meeting in person or by proxy and more than 75% of the votes cast.

(8)    This hearing was advertised in The Australian on 21 September 2017.

(9)    Neither SWL nor its solicitors have received notification from any shareholder of an intention to attend the second court hearing to oppose approval of the Scheme. The matter was called outside the courtroom at the commencement of the hearing. No one attended the hearing to oppose the Court making the orders.

(10)    Certificates signed by SWL and VCA confirm that as at 8 am on 3 October 2017, the conditions precedent under clause 3.1 of the Scheme Implementation Agreement, to which the Scheme is subject (other than Court approval and lodgement of the Court’s orders with ASIC), have been waived or met.

(11)    By letter dated 29 September 2017, ASIC has advised under s 411(17)(b) of the Corporations Act that it has no objection to the Scheme.

(12)    I have no reason to believe that SWL has not brought to the attention of the Court all matters that could be considered relevant to the exercise of the Court’s discretion.

(13)    There appears to have been full and fair disclosure to SWL shareholders of all information material to the decision whether to vote for or against the Scheme.

(14)    The Scheme appears to be fair and reasonable so that an intelligent and honest shareholder, properly informed and acting alone, might approve it.

6    I will therefore make orders in the form of those tendered at the hearing.

Associate:

Dated:    5 October 2017